Why Help An Employee?

I’m a management-side employment law attorney.  I get to work with human resources. In fact, I am an HR professional.  So, why on God’s green Earth would I, as an attorney, help an employee?

HR has been taking a huge hit lately.  The #MeToo movement and the countless stories of rampant sexual harassment are now (thankfully) part of the national conversation.  The reoccurring theme has been “Where was HR?” or “Why didn’t HR do something?”  While that criticism in some circumstances may be fair, HR is a bit like the CIA.  We only hear about the bad things HR does (or doesn’t do), and we rarely hear about all the good HR pros out there who have steeled themselves and done what is right.  I’m lucky to know many of them.

When an HR pro doesn’t do the right thing – especially when they are given the chance repeatedly – there comes a time when the friendly neighborhood employment attorney has to challenge that particular HR department.  I do this because we need good HR.  When bad HR hurts one of us, it hurts all of us.  So, it is up to us to take us on, to speak up and help those employees who have done everything in their power, given their employers every opportunity to do the right thing and yet have had the door to HR (and management) closed to them.

I’m lucky to currently represent an employee.  You can hear her story here.  It may be a fair criticism that as a management-side attorney, I shouldn’t represent her.  To me, I should.  Because if I’m going to help HR do better, sometimes that means I have to take us on when we’ve done wrong.


Photo by Jerry Kiesewetter on Unsplash


James Damore is suing Google, alleging the tech giant “systematically discriminates” against conservative white men.  While being both conservative (i.e. political affiliation) and male are protected class statuses in California, it’s not clear to me that Mr. Damore’s case has much merit.  (For Pete’s sake, he claimed women are not biologically capable of being good software engineers.)  Yet, it is a great example of an overreaction and an attempt to halt diversity initiatives nationwide.

Mr. Damore’s lawsuit was predictable.  He told us he was going to bring one.  It is also typical.  Affirmative action programs at colleges were attacked when white applicants were not getting in at the same rate as before.  A Christian sued Ford and its affiliates when the car manufacturer came out in support of gay marriage.  These kinds of lawsuits attempt to scare organizations into worrying that their diversity initiatives may swing too far, launching them head-first into litigation.  They may be effective on occasion, but as a scare tactic, it may be just as effective.

What should HR do? We should follow some of the same advice we’ve been bandying about for decades:

  • Dip into all sorts of candidate pools
  • Seek out affinity groups at colleges and universities
  • Think of churches/temples/mosques as places of worship and potential sources of candidates
  • Post job announcements EVERYWHERE
  • Offer training (maybe even English) to high-potential employees
  • Treat your employees with care
  • Draft policies with care to not affect a particular group
  • Validate selection programs for disparate impact
  • Seek out the opinions of employees of all shapes and sizes, genders, races, religions
  • Accommodate employees without putting up theoretical barriers
  • Acknowledge differences in the workplace and celebrate them
  • Listen

(Please note, this is not an exhaustive list.)  None of these tactics or strategies are discriminatory.  Only hiring women can be.  Setting specific quotas can be.  Only offering benefits for referring minorities or women can be.  We have to be careful and mindful that whenever we use a protected class status as a basis for hiring, we get closer to violating the law even when our intentions are good, moral, and just.

In response to the sexual harassment revelations, the Time’s Up Now group, 50/50 by 2020, pledges to get to 50 percent representation of women in Hollywood by 2020.  There’s a James Damore in Hollywood too.  While I don’t doubt that plenty of women are qualified or over-qualified for positions in Hollywood, the Hollywood version of James Damore is planning his attack.

Photo by Scott Webb on Unsplash

Purpose Over Fit

Hurricanes are bad.  “The Ladies” (otherwise known as Hurricanes Irma and Maria) were really, really bad for the residents of the U.S. Virgin Islands, destroying homes, churches, roads, and even police stations.  Very few places were spared.  This past week, I volunteered to do hurricane relief work with All Hands and Hearts, a rapid disaster response organization tasked with gutting homes to prepare them to be rebuilt. The experience was amazing, and it taught me a very important management lesson – purpose matters, fit doesn’t.IMG_1704

In September, I watched the news and saw images of one of my favorite childhood places get whacked by hurricanes, I wanted to help.  I put feelers out on social media that I was looking to give more than just money, I wanted to give my time and somewhat able body.  I applied to several programs, ultimately getting chosen by All Hands and Hearts for the week of Thanksgiving.  When I signed up, I really didn’t know what to expect, but sleeping arrangements and what I’d eat really wasn’t on the top of my priority list.  I wanted to help and that’s what mattered most.

This was the same sentiment of everyone at our base camp.  Yes, we got eaten by mosquitos, worked, ate, and slept in extreme heat and humidity, and got bruised and/or scraped, but those were minor complaints compared with what we had the privilege of doing.  One team worked at a home owned by Cynthia.  Cynthia had lived in her home for decades with her husband, who had recently passed.  During the storms, Cynthia cowered in her bathroom while her roof was torn off by winds and nearly 20 inches of rain soaked her belongings and walls.  Her husband’s vast record collection was waterlogged and mold was starting to creep in.  The All Hands team helped gut, clear and clean her house as she lovingly tried to save part of his records.   A team of volunteers removed water-logged drywall, killed mold, and sanitized Cynthia’s house in just three days.  Those volunteers had a purpose.  They wanted to help Cynthia and others like her.  So, they worked hard and with compassion.

This experience has convinced me that those folks who have drunk the culture fit kool-aid have it wrong.  What the culture fit gurus try to sell you is that when people “fit” together, they work better and faster. But the All Hands teams in USVI don’t fit together and often had very little in common.  Most of us even had very little training, arriving on the island with only our desire to help (and maybe a pair of Carhartt bibs).  Instead, what drove our team was a leader who worked with us (David was so great) and the common purpose to help individuals and families devastated by the storms.

ThanksgivingThere was Rex, a slowly retiring CEO of a wildly successful business; Natalie, a 19-year-old working for the Washington Conservation Corps; Paul, a former Longshoreman and Alaskan trucker with decades of experience with circular saws; Grace, a hospitality worker who quit her job to come down from the UK to help; Kelly, a COO of a tech company; Kathleen, a stay-at-home mom trying to figure out what she wants to do next, and Royce, a young associate at a large investment firm. This motley crew worked hard in the heat and humidity, taking weeks out of their busy lives to sleep on cots in a church banquet hall in order to make a difference in a place that is often overlooked.  I was and continued to be impressed and inspired by their commitment.

No hiring manager would put this team together. Yet, All Hands and Hearts brought these volunteers together, worked them hard with only one day off a week, and quickly made life just a little easier for hurricane victims.  All of the volunteers were focused on this purpose.  And while there may have been minor gripes and groans, we were focused.  So, for me, purpose trumps fit.   All Hands and Hearts proves it.



Since today is #GivingTuesday.  Please consider giving to All Hands and Hearts using this link.  Thank you! IMG_0094

Employees & Their Pesky Social Media

In my experience, giving the finger to the President of the United States isn’t the worse thing an employee has done on social media.  (Heck, I’ve helped fire people after Charlottesville if you catch my meaning.)  But, the incident of Juli Briskman, her middle digit, and the President’s motorcade illustrates the employer conundrum of employee social media.  Whether you love social media (me) or hate it (lots of people), it is now a factor of every day human resources.  We must deal with it.

Before getting to the meat of employee posts and pics, let’s get three things out of the way. First, employees have no First Amendment right to freedom of speech when working for a private employer.  If Mike declared his love for canned cheese at a dairy facility, Mike’s termination would be lawful. It doesn’t matter where Mike made the declaration – the factory floor or on Twitter – a private employer may take action.  It doesn’t matter that it was Mike’s personal opinion, an employer can simply not like the comment and terminate Mike lawfully.

Second, social media is a 24/7/365 after-work happy hour.  Social media is at work.  It’s used to connect employees, improve relationships with co-workers, and find out more about new job opportunities.  When folks use social media to share their political opinions, complain about a neighbor, or simply rant about a particular product, co-workers learn about these things.  Because we are so connected through social media, those rants, diatribes, or laudatory praise are seen and heard by co-workers just as if they were said at work or happy hour.  This means the post can affect the workplace, it does affect morale, and it can hurt the organization.  There is no “her Facebook is private” or “it was during her off time” argument when employees (or customers or clients) are connected to each other.  Social media is definitely not Vegas.

Third, when a post has to do with the employer itself, taking action gets tricky.  The National Labor Relations Act allows employees to discuss, complain, or rant about working conditions with each other.  They can do this on social media without fear of retaliation.  The rest of this post will deal with employee posts and pictures that have nothing to do with the employer.  If a post has to do with the employer, find your friendly neighborhood employment attorney.  Fast.

If employers can take action when an employee posts something they don’t like, the question then becomes should they.  Some – like the Charlottesville posts – are easy calls.  If someone posts something racist or sexist, the employee has got to go.  I often use the example of Justine Sacco.  Her tweet rightly got her fired, and nearly all of the HR pros, students, and business leaders I speak with agree.

Justine Sacco

However, when an employee posts something, many of the same HR pros, students, and business leaders get nervous.  I use the following hypothetical:

Mike has been a Manager for 11 years.  His work is well respected & his contributions to the company are immeasurable.  Erin is a new Assistant.  She got the job, because her friend, Joe, referred her.  Joe is connected on Facebook with Mike & Erin.

Erin shared a post from her friend criticizing the Women’s March, stating women & “the gays” already have equal rights.  Joe comments on the post that Erin is wrong.  Because Joe commented, Mike sees the post.  Mike is really, really upset.  Mike tells his manager about the post.

When I ask, “What would you do?,” the responses vary from “well, I guess I’d have to fire Erin” to “Couldn’t we just discipline her?”  Sometimes, the response is “Do nothing, an employee gets to be who she is outside of work.”  While this is admirable, it might not always be the best answer.  What if Mike threatens to leave the organization because of the post?  What if Erin rose through the ranks and started making hiring and firing decisions?  Couldn’t her post have an impact on hiring candidates from the LGBTQ community or her involvement in your diversity program?  This is where things get dicey, and employers have to think long and hard about what they are going to do with the Erins of the world.  The right answer will depend on the employer’s culture and tolerance of risk – both legal and reputational.

Here are some questions to ponder:

  • What has or will the effect on the workplace be? How much of disruption will this be?  How much will morale be affected?
  • If a manager made the post, what will the effect be on their employees? Will the post influence or have the appearance of influence over their ability to hire, manage, discipline, and fire employees?
  • Does the post conflict (directly or indirectly) with your mission, vision, or reputation?
  • Does the post violate a policy? For example, confidentiality or harassment policies could be implicated.
  • How many people outside the organization can see it? Will customers or clients see it?
  • If this was posted by a different employee, would we treat this differently?  Why?

These questions, along with all the other questions employers normally go through before disciplining or firing someone, are necessary.  Employers need to see the entire picture.

The next important consideration is consistency.  In the POTUS-middle-finger incident, Ms. Briskman’s employer claimed that her picture of her extending her digit towards the President was lewd and obscene.  Hence, her termination.  However, Ms. Briskman pointed to a “director’s” posting where he called an individual a “forking Libtard ascot” (Shout out to The Good Place.)  Arguably, this post is equally (if not more) obscene and lewd as Ms. Briskman’s finger, but the director was able to keep his job after removing the post.  And, arguably, if the only difference is that Ms. Briskman is a woman and the director is a white male, when then, Ms. Briskman could have a gender discrimination case.  This is exactly why consistency is key.  If you’re going to fire Ms. Briskman, you have to fire the director too.

My friend, Heather Bussing, jokes that you find out about employee bad behavior on social media just as fast as employees run to the cafeteria for free pizza.  It’s true.  When Janine does something controversial on social media, you find out about it quickly.  You may have to deal with it just as quickly.

Photo by Annie Spratt on Unsplash

Listening to Harassment

In the past week, we’ve learned about Harvey Weinstein.  Much like Roger Ailes, Bill O’Reilly, Bill Cosby, and others, the conduct perpetrated by Mr. Weinstein is horrific and devastating.  Questions like “how did this go on for so long” or “why didn’t the women speak up” are natural, but these miss the fundamental point – this happened.  The conduct was ignored or even facilitated by others for so long.

What if you were HR at the Weinstein Company?  What if a brave woman came to you and explained what had happened?  What would you do?  After listening to many, many stories of sexual harassment, here’s my advice to the HR pro when someone walks into your office with a story of harassment:

  1. Listen. Seriously.  Yes, you’re going to have to take notes, but the first goal is to listen.  Take the time to give the person in your office your undivided attention as she or he gets the story out the way they planned to tell you.  A lot of the person’s brain has been totally consumed with how to tell you.
  2. Give the person space. Telling someone about harassment is hard.  Really, really hard.  Shame and lack of self-confidence are so undermined by harassment that finding the courage to tell you, even if they know you well, takes significant effort.  Let the person get the story out how she or he wants to get it out.  Try not to interrupt.
  3. Have tissues. Yes, it is cliché, but trust me, having a box of tissues nearby never hurt anyone, and often, it is a simple offer of tissues that will provide comfort even though you cannot agree with the person.
  4. Explain your role. After you’ve heard the story the way the person wanted to tell you, explain you will have to start an investigation.  During the investigation, you won’t be able to “take sides,” but you will do your best to gather the necessary facts, listen to people with information, and be as thorough as possible.  Tell the person you may hire an outside investigator.
  5. Go through the facts. Explain that because you need information, you will have to ask a bunch of questions even though it might be painful.  (You can empathize that it is painful.  That’s okay.) Then go through the story again.  Ask questions.  Ask for dates, times, and who else she or he thinks you should talk to.  You won’t be able to keep things 100% confidential because you need to investigate – tell the person this.
  6. Take notes. Once you’ve been through your role, you should start taking notes. Please take thorough notes.  If this gets to litigation or a New Yorker story, your notes are going to be placed in front of you on numerous occasions.  Make sure you understand them and can explain them.
  7. Thank. Please thank the person for bringing this information to you.  Thank them for spending the time to do it and the emotional energy.

These are just tips on how to hear about it.  There are so many other things you will need to do after you’ve listened.  Talking to your manager, taking timely and appropriate action, taking a look at your harassment training, and many other things may be what you will do.

As HR folk, we have obligations – not only to our organizations and the people we work with – we have an obligation to our profession.  The New York Times investigation included assessments of the Weinstein Company HR department as weak and ineffective.   We can change that.  We do good for organizations when we speak up, investigate, and facilitate effective actions that prevent and stop this behavior.  We can do it.

Photo by Zhen Hu on Unsplash

Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash